Amicus Curiae Brief — Louisiana, Appellant v. Phillip Callais, et al.

Nos. 24-109, 24-110

In the

Supreme Court of the United States

LOUISIANA,

Appellant,

v.

PHILLIP CALLAIS, et al.,

Appellees.

PRESS ROBINSON, et al.,

Appellants,

v.

PHILLIP CALLAIS, et al.,

Appellees.

On A ppeals from the United States District

Court for the Western District of Louisiana

BRIEF OF AMICUS CURIAE LANDMARK LEGAL

FOUNDATION IN SUPPORT OF APPELLEES

Richard P. Hutchison

Landmark Legal Foundation

3100 Broadway, Suite 1210

Kansas City, MO 64111

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 554-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae

September 24, 2025

120609

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STATEMENT OF INTEREST OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

The Robinson district court spurred the

creation of a racial gerrymander because

it failed to enforce the first Gingles test

precondition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. The Court’s current interpretation of the

VRA on vote dilution claims and its application

of Gingles lead to a conf lict with the

Fourteenth and Fifteenth Amendments . . . . . . . 8

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Abbott v. Perez,

585 U.S. 579 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11

Allen v. Milligan,

599 U.S. 1 (2023) . . . . . . . . . . . . . . . . . . . . 3, 4, 7, 12, 13

Bartlett v. Strickland,

556 U.S. 1 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Bost v. Ill. State Bd. of Elections,

No. 24-568 (petition for cert. filed Nov. 19, 2024) . . . 1

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Bush v. Vera,

517 U.S. 952 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

City of Mobile v. Bolden,

446 U.S. 55 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Gomillion v. Lightfoot,

364 U.S. 339 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Holder v. Hall,

512 U.S. 874 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Husted v. A. Philip Randolph Inst.,

584 U.S. 756 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iii

Cited Authorities

Page

Johnson v. De Grandy,

512 U.S. 997 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 11

Loving v. Virginia,

388 U.S. 1 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Parents Involved in Cmty. Sch. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rice v. Cayetano,

528 U.S. 495 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Richmond v. J. A. Croson Co.,

488 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Robinson v. Ardoin,

605 F. Supp. 3d 759 (M.D. La. 2022) . . . . 2-6, 8, 13, 14

Rucho v. Common Cause,

588 U.S. 684 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Shaw v. Reno,

509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Shelby Cnty. v. Holder,

570 U.S. 529 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iv

Cited Authorities

Page

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 13

Sunseri v. Cassagne,

196 So. 7 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Thornburg v. Gingles,

478 U.S. 30 (1986) . . . . . . . . . . . . . . . . . . . . 2-4, 6, 8, 12

Vieth v. Jubelirer,

541 U.S. 267 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wright v. Rockefeller,

376 U.S. 52 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

UNITED STATES CONSTITUTION

U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . 12

U.S. Const. amend. XIV . . . . . . . . . . . . 1, 3, 6, 8-12, 14, 15

U.S. Const. amend. XV . . . . . . . . . . . . . . . . 3, 8-12, 14, 15

STATUTES AND REGULATIONS

Voting Rights Act, Pub. L. 89-110, 79 Stat. 437,

as amended, 52 U.S.C. § 10301 et seq. . . . . . . . . . . . 1, 9

La. Rev. Stat. § 18:1276.1 (2024) . . . . . . . . . . . . . . . . . . . . 7

v

Cited Authorities

Page

OTHER AUTHORITIES

Robert H. Bork, The Tempting of America:

The Political Seduction of the Law (1990) . . . . . . . . 12

Brief for Appellees, Louisiana v. Callais,

Nos. 24-109, 24-110 (U.S. Jan. 21, 2025) . . . . . . . . . . . 7

Brief for Appellee Louisiana Secretary of State,

Louisiana v. Callais, Nos. 24-109, 24-110

(U.S. Sept. 17, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Graph ica l Elect ion Resu lt s, Lou isia na

Secretary of State, voterportal.sos.la.gov/

graphical (last visited Sept. 22, 2025) . . . . . . . . . . . 14

U. S. Census Bureau, Louisiana: Profile,

d a t a . c e n s u s . g o v, ht t p s : //d a t a . c e n s u s .

gov/prof i le / Louisiana?g=0 40X X0 0US2 2

(last visited Sept. 20, 2025) . . . . . . . . . . . . . . . . 5, 8, 14

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

Amicus Cur iae Landmark Legal Foundation

(“Landmark”) is a national public-interest law firm

committed to preserving the principles of limited

government, separation of powers, federalism, originalist

construction of the Constitution and individual rights.

This case is about the proper scope of the Voting Rights

Act (VRA), Pub. L. 89-110, 79 Stat. 437, as amended,

52 U.S.C. § 10301 et seq. Landmark has previously filed

amicus briefs in cases involving the Voting Rights Act,

including Shelby Cnty. v. Holder, 570 U.S. 529 (2013),

and Brnovich v. Democratic Nat’l Comm., 594 U.S. 647

(2021), as well other election law cases such as Husted v.

A. Philip Randolph Inst., 584 U.S. 756 (2018), and Bost

v. Ill. State Bd. of Elections, No. 24-568 (petition for cert.

filed Nov. 19, 2024).

Landmark respectfully urges this Court to affirm.

INTRODUCTION AND

SUMMARY OF ARGUMENT

“In the wake of the Civil War, the Framers of the

Fourteenth Amendment charted a way out: a colorblind

Constitution that requires the government to, at long

last, put aside its citizens’ skin color and focus on their

individual achievements.” Students for Fair Admissions,

Inc. v. President & Fellows of Harvard Coll., 600 U.S.

1. No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amicus Curiae, its members, or its counsel

made a monetary contribution to its preparation or submission.

2

181, 283 (2023) (Thomas, J., concurring). Despite the

momentousness of this promise, the nation is still mired

in the challenges of its implementation a century and

a half later. Louisiana’s congressional districts as they

stand currently are aggressive and unconstitutional

racial gerrymanders. The map divides Louisiana into

six districts that snake across the state with little regard

to geographical or political boundaries to maximize the

percentages of different racial groups in their allotted

districts. The map strikes directly at the foundational

American ideal that our government will not treat people

differently and pit them against one another based on the

color of their skin.

The map exists in this form because the test put

forth in Thornburg v. Gingles, 478 U.S. 30 (1986), has

been loosened considerably since its creation almost four

decades ago. Specifically, the Middle District of Louisiana’s

finding that a second majority-black district was likely

necessary to remedy a Section 2 violation relied heavily on

the desire for proportionality in representation. Robinson

v. Ardoin, 605 F. Supp. 3d 759, 851 (M.D. La. 2022).

Even though this is explicitly eschewed by the statute,

the district court drew upon this Court’s post-Gingles

precedents to justify its decision. Id. at 777 n. 107 (citing

League of United Latin Am. Citizens v. Perry, 548 U.S.

399 (2006); Johnson v. De Grandy, 512 U.S. 997 (1994)).

In doing so, the district court reopened a central irony of

the federal judiciary’s recent Section 2 jurisprudence. A

test designed to prevent racial gerrymandering is now

being employed to cause stark racial gerrymandering.

The district court’s emphasis on proportionality in

its decision-making is a predictable result of statutory

precedents endorsing maximalist readings of Section 2

3

of the VRA. Allen v. Milligan, 599 U.S. 1 (2023), is the

most recent of such precedents. It enabled plaintiffs suing

Alabama to effectively flip the standard of review for

Section 2 claims. Since the 1982 amendment to the statute,

the test to show discrimination has inched toward the mere

possibility that another majority-minority district could be

drawn. In Robinson, the potential for proportionality, even

where it came at the expense of compactness, incumbents,

and municipal subdivisions, was determinative. Loosening

the standards to achieve the first Gingles precondition

and allowing racial considerations to override all others

diminishes the credibility of Section 2’s proportionality

disclaimer. It also, crucially, puts the statute as interpreted

on a collision course with the Fourteenth and Fifteenth

Amendments.

This constitutional dilemma was wholly avoidable,

however. Several standards proposed over the decades of

Section 2 cases resolve this issue. One expansive option to

do so would be adopting Justice Thomas’s longstanding

position that Section 2 of the VRA never applied to

districting in the first place. Abbott v. Perez, 585 U.S. 579,

622 (2018). Even much more modest changes could achieve

the same effect of curing the constitutional error here. For

example, Alabama’s proposed race-neutral standard in

Allen v. Milligan to detect racial discrimination remains

a strong option to resolve this tension. Considering raceneutral maps to highlight which traditional factors would

need to be diminished to achieve additional majorityminority districts is not a “novel requirement,” Allen, 599

U.S. at 6, but central to the analysis that is supposed to

undergird the Gingles test. The race-neutral benchmark

test comports with both the text of the VRA and the

commands of the Constitution.

4

The Court has gone down a dangerous path by

permitting a central role for racial classifications in

redistricting. The Constitution requires that race not

predominate in the drawing of legislative districts. And

yet, without any sort of race-neutral standard in Section

2 claim evaluations, race has now repeatedly done just

that. Without walking back statutory precedents like

Allen, the constitutional violations currently enshrined in

Louisiana’s deeply segregated districts put the whole of

Section 2 in jeopardy. It is time to change course.

ARGUMENT

I.

The Robinson district court spurred the creation of a

racial gerrymander because it failed to enforce the

first Gingles test precondition.

The Middle District of Louisiana’s decision in

Robinson v. Ardoin, 605 F. Supp. 3d 759 (M.D. La.

2022), was profoundly mistaken. By ruling in favor of

the plaintiffs based on Section 2, it forced Louisiana

to change its maps to adopt a different racial balance

of its congressional districts. The district court’s key

error was accepting the plaintiffs’ claim that Louisiana’s

political geography satisfies Gingles I, or the “large and

geographically compact” precondition. Thornburg v.

Gingles, 478 U.S. 30, 50 (1986). It did so partly based on

two small sets of illustrative maps from expert witnesses

that were visibly racial gerrymanders. Robinson, 605

F. Supp. 3d at 780, 785. The illustrative maps bypass

almost every traditional redistricting factor, including

parish boundaries, city boundaries, geographical regions

of the state, protection of incumbents, and compactness

in the interest of configuring a second majority-black

5

district. And despite the contortions necessary to put

these illustrative maps together, they still ran into several

issues.

The first was their rigidity. In joining together black

communities from around the state with little else in

common, each of the illustrative maps required that the

new Baton Rouge-anchored, majority-black district evict

Representative Julia Letlow from her seat. Id. Their maps

require this despite her living approximately one hundred

fifty miles from Baton Rouge in the state’s northeastern

Richland Parish. This was because the political geography

of the state, which has only seven majority-black parishes,

leaves few options in drawing this second district. Of the

seven parishes, two (Orleans and St. John the Baptist) form

the basis of the first majority-black district (CD2), four are

exceedingly small (East Carroll, Madison, Tensas, and St.

Helena), and the final parish (Caddo) is in the northwest,

on the other side of the state entirely. U.S. Census Bureau,

Louisiana: Profile, data.census.gov, https://data.census.

gov/profile/Louisiana?g=040XX00US22 (last visited Sept.

20, 2025). What this implies is that pieces of parishes,

instead of parishes themselves, would be needed to get

across the fifty-percent threshold in the construction of

the second district at issue. With this context, it becomes

apparent why each of the six illustrative maps looked

so similar: options for splitting parishes based on race

and connecting them in a way that looked even plausibly

constitutional were quite limited.

Another issue was that even with the black populations

of Monroe, Alexandria, Lafayette, the rural Delta

Parishes, and Baton Rouge configured together in

suggested districts based unmistakably on race, it

6

produced the barest of majorities. None of the illustrative

maps the Middle District endorsed had any districts that

exceeded fifty four percent black. Robinson, 605 F. Supp.

3d at 779-780, 785-786. Moreover, even the question of who

could count as black became a point of issue at the district

court level. Louisiana and the Robinson plaintiffs disputed

whether to employ an expansive (Any Part Black Voting

Age Population) or restrictive (Non-Hispanic Single-Race

Black Citizen Voting Age Population) definition of race for

Section 2 purposes. This disagreement had meaningful

implications for whether the second majority-black

district could be constructed in relative accordance with

traditional redistricting principles. Id. at 779-786, 791-792.

Both of these factors seriously call into question whether

the Gingles I precondition was met.

The clash among experts at the district court over

how much black heritage makes someone black for

congressional purposes is an indication of the inherent

problems in vote dilution cases. This dispute is reminiscent

of the infamous Louisiana black codes that produced

cases like Sunseri v. Cassagne, 196 So. 7 (1940), where

the Louisiana Supreme Court had to scour a Louisiana

woman’s family history for evidence of any black ancestry

in a divorce case. For modern judicial opinions to read like

blood quantum laws explicitly thrown out decades ago in

Loving v. Virginia, 388 U.S. 1 (1967), strongly suggests

that Fourteenth Amendment protections are implicated.

The Robinson decision required Louisiana and its

leaders to engage in something they repeatedly have told

this and other courts that they are loath to do: highly

race-based districting. Louisiana’s response, to pass

a map (S. B. 8) that at least protected the high-profile

7

incumbent Representative Julia Letlow, Louisiana’s only

Representative on the House Appropriations Committee,

was a reasonable political decision while otherwise facing

very difficult circumstances. La. Rev. Stat. § 18:1276.1

(2024). But regardless of the reasons for S. B. 8’s adoption,

understandable or not, the map egregiously divides

Louisianans based on race, with the new Congressional

District 6 splitting nine separate communities and six of

its ten parishes into pieces based on little more than racial

grounds. Id. A fair assessment of this situation yields the

clear result that race predominated in the drawing of these

maps. Justice Alito’s analogy to define predomination

applies here: that “if achieving a certain objective is ‘nonnegotiable,’ then achieving that objective will necessarily

play a predominant role.” Allen v. Milligan, 599 U.S. 1, 101

(2023) (Alito, J., dissenting). The legislative record makes

this non-negotiability, and thus predominance, explicit.

Brief for Appellees at 12–16, Louisiana v. Callais, Nos.

24-109, 24-110 (filed Jan. 21, 2025).

Thus, the consequent equal protection claims lodged

by Appellees here stand on solid legal footing. Louisiana

has a high bar to meet to demonstrate that this racial

classification and differential treatment would survive

strict scrutiny. That the Secretary of State herself says it

does not is telling. Brief for Appellee Louisiana Secretary

of State at 15-20, Louisiana v. Callais, Nos. 24-109, 24-110

(U.S. Sept. 17, 2025). In the “sordid business [of] divvying

us up by race,” League of United Latin Am. Citizens v.

Perry, 548 U.S. 399, 511 (2006) (Roberts, C.J., concurring

in part, concurring in the judgment, and dissenting in

part), districts like this send an unmistakable signal to

Louisiana voters: members of Congress represent racial

constituencies rather than diverse communities. This is

8

antithetical to the American project and is a travesty of the

Fourteenth Amendment. When districting is as racially

motivated as it is here, every voter not of the dominant

race of their district (non-white voters in Districts 1, 3, 4,

and 5; as well as non-black voters in Districts 2 and 6) has

a strong claim that they have been placed into districts

with the state’s intent for them not to see their preferred

candidate win elections simply on account of their race.

Moreover, the Middle District’s decision, in addition

to making Louisiana liable for a host of equal protection

claims, stands to make Gingles meaningless. If Section 2

plaintiffs can prevail on claims as tenuous as this, leading

to districts as odd-looking as this, then Gingles serves as

a de facto requirement for proportionality. Louisiana is

thankfully a very integrated state, with each of its largest

metropolitan areas having quite large populations of both

black and white voters. U.S. Census Bureau, supra. This

is a testament to the decisions that average people make

every day to live in integrated communities. Overriding

the way that Louisianans have decided to organize

themselves is not what the statute requires, and it is not

something the Constitution allows.

II. The Court’s current interpretation of the VRA on

vote dilution claims and its application of Gingles

lead to a conflict with the Fourteenth and Fifteenth

Amendments.

The Middle District of Louisiana’s decision in

Robinson, while constitutionally suspect, is a predictable

result of this Court’s vote dilution jurisprudence. By

accepting vote dilution claims as covered under Section 2

and refusing to tie the assessment of these claims to any

9

sort of neutral baseline, the Court has inched further

towards a proportionality standard in contravention of

the law’s explicit text. Steadily bringing Section 2 into

greater contention with the Fourteenth and Fifteenth

Amendments has not come without warnings, however.

Three decades ago, Justice Thomas argued that the

VRA should be interpreted narrowly and not be read to

permit vote dilution claims. Holder v. Hall, 512 U.S. 874,

892 (1994) (Thomas, J., concurring). He drew on an earlier

warning another three decades prior about districting

from Justice Douglas. “The principle of equality is at war”

with racial and religious districting. Wright v. Rockefeller,

376 U.S. 52, 66 (1964) (Douglas, J., dissenting). Justice

Douglas further stated in Wright that “government has

no business designing electoral districts along racial or

religious lines.” Id. According to Justice Thomas, the text

of Section 2 referred to the pressing issue at the time of

the Act’s passage in 1965—the black voter’s inability to

vote in the South due to intentional impediments to their

ballot access like literacy tests and grandfather clauses.

Holder, 512 U.S. at 893.

As amended after City of Mobile v. Bolden, 446 U.S.

55 (1980), the VRA provides an amorphous “totality of

the circumstances” standard for whether some groups

have “less opportunity than other members of the

electorate to participate in the political process and to

elect representatives of their choice.” 52 U.S.C. § 10301(b).

By its terms, this standard is not something that can be

measured with precision. And Section 2 claims are unlike

Section 5 preclearance claims where the proposed change

could be compared to an existing standard, the status quo.

10

Several problems arise from an expansive reading

of an already broadly worded statute. The Court is

drawn into political issues—not just partisan politics, but

questions of political philosophy. For instance, are singlemember or multi-member districts preferable? Is it better

for a minority group to be more highly concentrated in

one district or spread out in lower, but still potentially

outcome-determinative, margins within two? Holder,

512 U.S. at 893-897. As the Court gets drawn into these

questions best left to Congress, separation-of-powers

issues arise. In addition, the Court’s recent political

gerrymandering cases highlight the need for a fixed

principle when deciding cases. “‘[J]udicial action must be

governed by standard, by rule,’ and must be ‘principled,

rational, and based upon reasoned distinctions’ found in

the Constitution or laws.” Rucho v. Common Cause, 588

U.S. 684, 718, (2019) (citing Vieth v. Jubelirer, 541 U.S.

267, 278, 279 (2004) (plurality opinion)).

Justice Thomas laid the vote dilution problem bare.

“In construing the Act to cover claims of vote dilution,

we have converted the Act into a device for regulating,

rationing, and apportioning political power among racial

and ethnic groups.” Holder, 512 U.S. at 893. Once again,

that warning was made thirty years ago. Since then, other

Justices have sounded warnings about the looming conflict

between the racial focus of the vote dilution cases with the

Fourteenth and Fifteenth Amendments.

• “Racial classifications of any sort pose

the risk of lasting harm to our society. . . . Racial

classifications with respect to voting carry

particular dangers. Racial [gerrymandering],

even for remedial purposes, may balkanize us

11

into competing racial factions; it threatens to

carry us further from the goal of a political

system in which race no longer matters—a goal

that the Fourteenth and Fifteenth Amendments

embody. . . .” Shaw v. Reno, 509 U.S. 630, 657

(1993) (O’Connor, J.).

• “To the extent there is any doubt

whether § 2 calls for the majority-minority

rule, we resolve that doubt by avoiding serious

constitutional concerns under the Equal

Protection Clause. . . . If § 2 were interpreted

to require crossover districts throughout the

Nation, ‘it would unnecessarily infuse race

into virtually every redistricting, raising

serious constitutional questions.’” Bartlett v.

Strickland, 556 U.S. 1, 21 (2009) (Kennedy, J.)

(plurality opinion) (quoting League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 446

(2006)).

• “Since the Equal Protection Clause

restricts the consideration of race and the VRA

demands consideration of race, a legislature

attempting to produce a lawful districting

plan is vulnerable to ‘competing hazards of

liability.’” Abbott v. Perez, 585 U.S. 579, 587

(2018) (Alito, J.) (quoting Bush v. Vera, 517 U.S.

952, 977 (1996)).

Similarly, Justices have warned about the lack

of a neutral benchmark in vote dilution cases beyond

proportionality. Justice O’Connor noted that “[t]here

is an inherent tension between what Congress wished

12

to do and what it wished to avoid, because any theory

of vote dilution must necessarily rely to some extent

on a measure of minority voting strength that makes

some reference to the proportion between the minority

group and the electorate at large.” Gingles, 478 U.S. at

84 (O’Connor, J., concurring). Justice Alito wrote, “a § 2

plaintiff who claims that a districting map violates § 2

because it fails to include an additional majority-minority

district must show at the outset that such a district can

be created without making race the predominant factor

in its creation.” Allen, 599 U.S. at 99 (2023) (Alito, J.,

dissenting). Unfortunately, the holding in Allen rejected

the idea that a race-neutral benchmark was necessary and

instead adopted a de facto proportionality standard. If the

VRA demands proportionality, race is considered in the

creation of legislative maps to an extent that violates the

Fourteenth and Fifteenth Amendments. As Judge Bork

wrote about the Fourteenth Amendment’s Enforcement

Clause, “The power to ‘enforce’ a law is not the power to

change the law’s content. . . . Had the ratifiers intended

to reserve to Congress the authority to alter the concept

of equal protection, they could have said so much more

plainly.” Robert H. Bork, The Tempting of America: The

Political Seduction of the Law 91-92 (1990).

The road to continued racial classification in American

law is paved with the good intentions of using race as a

remedial tool. Despite this, the use of racial classifications

to solve real or perceived racial discrimination without a

compelling interest runs a perilous risk of “den[ying] . . .

equal protection of the law” to those outside the racial

classification. U.S. Const. Amend. XIV, § 1. The Court

has recognized this, and repeatedly rejected the use of

racial classifications, well intentioned though they may

13

have been, for this reason. See Richmond v. J. A. Croson

Co., 488 U.S. 469 (1989) (holding a municipal minority setaside plan violated the Equal Protection Clause); Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S.

701 (2007) (ruling a voluntary racial segregation program

violated the Equal Protection Clause); Students for Fair

Admissions, Inc. v. President & Fellows of Harvard

Coll., 600 U.S. 181 (2023) (holding the use of race in

college admissions violated the Equal Protection Clause).

Nevertheless, Allen has encouraged states to use racial

classifications in districting. The discord here is untenable.

Even if created with the best of intentions to benefit racial

minorities, these Section 2-driven maps clash directly

with the Equal Protection Clause. Remedial racial

gerrymandering is still unconstitutional. The Chief Justice

said it best himself: “The way to stop discrimination on

the basis of race is to stop discriminating on the basis of

race.” Parents Involved in Cmty. Sch., 551 U.S. at 748.

In the instant case, evidence strongly suggests that S.

B. 8 and even the Robinson illustrative maps fit squarely

among these unconstitutional racial gerrymanders.

Configuring this second majority-black district is nearly

impossible to do without the racial considerations that

the Amendments almost always bar. When a race-neutral

benchmark was applied to Louisiana at the district court

stage, and 10,000 race-neutral maps were drawn, none had

any majority-black districts, let alone two. Robinson, 605

F. Supp. 3d at 794-795. Louisiana’s geography explains this

finding. Orleans Parish (coterminous with New Orleans)

is the largest majority-black parish, but because its

population size forms only about half of a congressional

district, the expert witness was forced to reach into

neighboring parishes, which are likely to be either more

14

white, more Hispanic, or both. Id.; U.S. Census Bureau,

supra. Election results in recent cycles strongly suggest

that any district centered on New Orleans in a raceneutral situation would be a coalition district where black

voters still succeed quite often in electing their candidate

of choice due to crossover voting. Graphical Election

Results, Louisiana Secretary of State, voterportal.sos.

la.gov/graphical (last visited Sept. 22, 2025). Regardless, it

is inescapable that getting past the arbitrary fifty-percent

black voting age population threshold in two different

districts around the state would not happen but for quite

exacting racial classifications.

Voting Rights Act-driven racial gerrymanders

are ultimately nothing more than one nail driving out

another. A state which creates a black-majority district

through gerrymandering may do so to satisfy the VRA’s

requirements. Yet, by effectively disenfranchising nonwhite residents in white majority districts and non-black

residents in black majority districts on account of race, the

state will have violated their rights. These groups become

permanently entrenched as electoral losers because of the

color of their skin, and “[w]hen a legislature thus singles

out a readily isolated segment of a racial minority for

special discriminatory treatment, it violates the Fifteenth

Amendment.” Gomillion v. Lightfoot, 364 U.S. 339, 346

(1960). Similarly, because the map purposely dilutes the

voting power of these groups on the basis of their race, it

does not afford them the equal protection of their voting

rights guaranteed by the Fourteenth Amendment.

The maps at issue here do not fare much better

on Fifteenth Amendment grounds, either. This Court

made clear in Rice v. Cayetano, 528 U.S. 495 (2000),

15

that, “[c]onsistent with the design of the Constitution,

the Amendment is cast in fundamental terms, terms

transcending the particular controversy which was the

immediate impetus for its enactment. The Amendment

grants protection to all persons, not just members of a

particular race.” Id. at 512. Packing voters into different

districts based on race does the exact opposite for voters

of all races left out in the cold. So long as Section 2 is read

to permit what are essentially proportionality claims,

a system will continue which generates endless equal

protection and racial vote dilution claims each time an

electoral map is redrawn. Ultimately, it bears repeating

that the Fourteenth and Fifteenth Amendments, by their

own text, apply to the individual. U.S. Const. Amend.

XIV, XV. That some voters of any race are advantaged

in certain districts in Louisiana does nothing to mitigate

potential claims brought by those whose race plays a

major role in their disenfranchisement elsewhere in the

state. The way out of this quandary, of course, is to move

toward the colorblindness required by the Constitution.

When racial considerations are limited to assuring

representation at the level that race-blind maps would

entail, then the constitutional claims that arise under the

current scheme dissipate. The strength of this standard is

that it cuts both ways. By continuing to allow challenges

in cases of empirically backed dilution while removing the

gerrymandering that stems from proportionality for its

own sake, the Court can strike the balance that Section 2

jurisprudence has sorely needed for decades now.

16

CONCLUSION

The decision of the district court should be affirmed.

Respectfully submitted,

Matthew C. Forys

Richard P. Hutchison

Counsel of Record

Landmark Legal Foundation

Michael J. O’Neill

3100 Broadway, Suite 1210

Landmark Legal Foundation

Kansas City, MO 64111

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 554-6100

matt@landmarklegal.org

Attorneys for Amicus Curiae

September 24, 2025